Posted
by
CmdrTaco
on Thursday September 10, 2009 @10:47AM
from the tap-into-the-future dept.

netbuzz writes "Guy kicks up a fuss at a Massachusetts car-repair shop, employees call the police, guy allegedly gives them a hard time, too, and they charge the fellow with a variety of expectable charges: disorderly conduct, resisting arrest ... and 'unlawful wiretapping and possessing a device for wiretapping.' The device? A digital voice recorder. Massachusetts is one of only 12 states that prohibit the recording of a conversation unless all parties to it are aware it's being recorded."

Michigan law makes it a crime to "use[] any device to eavesdrop upon [a] conversation without the consent of all parties." This looks like an "all party consent" law, but one Michigan Court has ruled that a participant in a private conversation may record it without violating the statute because the statutory term "eavesdrop" refers only to overhearing or recording the private conversations of others. The Michigan Supreme Court has not yet ruled on this question, so it is not clear whether you may record a conversation or phone call if you are a party to it. But, if you plan on recording a conversation to which you are not a party, you must get the consent of all parties to that conversation.

Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto... is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both.

I assume you are familiar with the 10th amendment and the concept of separation of powers?

This is not a safe assumption. One of the few things all three branches of the federal government happily agree on: the 9th and 10th Amendments do not mean what they say. See also: the nationalized health-care debate.

Illinois is one of theose twelve states. I refer to it as the "liar's law". There is no other reason I can't record a conversation in a public place except that the politicians don't want their lies revealed.

Well, maybe there are other secrets they want kept that aren't lies -- like their extramarital affairs. These 12 states, including mine, must have some incredibly immoral and hypocritical legislators.

However, I'll bet that the wiretapping charge doesn't stick. These days the cops make all sorts of spurious charges and the DA plea bargains the charges down. I'll bet he pays a few huundred bucks fine for a misdemeanor.

Pennsylvania is one of the states with such a law. However, the Pennsylvania statute explicitly excepts those locations where a person does not have an expectation of privacy, such as a restaurant. I think that there is a good chance that this case would fall under such an exception

However, I'll bet that the wiretapping charge doesn't stick. These days the cops make all sorts of spurious charges and the DA plea bargains the charges down. I'll bet he pays a few huundred bucks fine for a misdemeanor.

This is true, however, this is also the reason you don't piss off cops. Don't let them violate your rights, sure, but don't be a jerk. They will instantly acquire an almost da Vinci-like creativity for inventing reasons you've broken the law. It's not worth the hassle.

This is true, however, this is also the reason you don't piss off cops. Don't let them violate your rights, sure, but don't be a jerk. They will instantly acquire an almost da Vinci-like creativity for inventing reasons you've broken the law.

They don't need to "invent" anything. Why do you think all jurisdictions have those "catch-all" laws on the books, like "disorderly conduct" or "creating a disturbance" or "being a public nuisance." These laws are deliberately vague so that if you act like a dick when the cop stops you, he's got plenty of leeway to charge you with something.

From what I read, he wasn't 'mad' as much as he was absolutely pissed off and belligerent. Which does tend to get you arrested, even when you are responding reasonably.

If you're interested in the facts, the whole affair is fairly well documented on the web. Especially pertinent, I think is the report from the second officer to arrive on the scene. You know, the black cop who hadn't been getting yelled at for the last several minutes...

I find it interesting that a website filled with people who are normally outraged at the idea of video surveillance in a public place with everyone's knowledge is so accepting of the idea of audio surveillance in a public place without everyone's knowledge.

Personally, I'm on the fence on this. I don't like the idea of people recording me (audio or video) without my knowledge or consent, because as a general rule I don't trust people. However, I'm not sure I want a law to prevent it.

I think your missing the point. The real officer wouldn't have cited him in the first place. The electronic cop makes him go to court to contest a witness that he can't even confront, and your answer is to gather enough money up to sue the city for harassment from an electronics policeman who you still can not confront.

Yea, he has options, more so if he was rich. Right and wrong are often obvious yet they do not apply evenly to everyone. This unevenness gets more skewed the further apart the income scale goes.

I wonder how much trouble I'd get into if I put on a ski mask, in the middle of summer, and walked into my local bank, walked up to the ATM, put in my own card, took out some cash, and walked out. Would I even get back to the door, or would the police already be there to arrest me while I was trying to take out the cash?

Maybe if I were independently wealthy and had time on my hands to take the police down a notch or two I'd try something like this. In the meantime, though, I don't think I can afford the lunacy of fighting the cops.

I'm a motorcyclist. I wear a helmet on my way to the bank, and for the colder half of the year, I wear a ski mask underneath that.

Banks are pretty touchy about masks. I've never tried to wear one into the bank, but they've actually stopped me from putting on my helmet on the way out, even after they had my face on camera.

I find that it tends to make (mall) security officers a little tense as well.

Interestingly, people tend to be more nervous about the mask than the helmet. I installed a nose guard which effectively covers the ski mask - you can't easily tell I'm wearing one by looking through the visor. People seem a little more relaxed.

All the banks I go to have ATMs on the outside. I never take my helmet off when I use them, and I've never had any trouble because of it.

I strongly suspect that if you walked into a bank wearing a ski mask for no obvious reason, an officer would be called by the time you got to the teller, and you'd be arrested on your way out.

These days the cops make all sorts of spurious charges and the DA plea bargains the charges down. I'll bet he pays a few huundred bucks fine for a misdemeanor.

That's not a real improvement. Even a misdemeanor record will hurt your employment viability/ability to get a security clearance/ability to get a concealed carry permit (in some states)/ability to get professional licenses/etc/etc.

When I got charged with felonies I didn't commit they offered me a plea bargain down to a misdemeanor. I told them to go to hell (actually my lawyer did but that's another matter) and fought it all the way to the Grand Jury that refused to indict me. Cost me a lot more money but at least I came out of it without a criminal record.

And that's the problem... It costs the state nothing to pile as many charges as they please on you, but it costs a SHITLOAD to fight them.

Maybe it's time to make the state pay for your defense when you're aquitted? If they have one valid charge, and pile on 9 other bogus ones to see if they stick, they pay 90% of your defense bill if you're aquitted of 9/10 of them.

Maybe it's time to make the state pay for your defense when you're aquitted?

Great idea, one that I'd like to see, but the law of unintended consequences will rear it's ugly head. If the state, i.e. taxpayers, have to pay for state mistakes, Judges and Juries will be even less likely to acquit. Would you rather have a few more innocent people go to jail, so that some people will be compensated for being wrongly accused?

Maybe it's time to make the state pay for your defense when you're aquitted?

I don't know about that. The law of unintended consequences will rear it's ugly head. I don't have many ill feelings about my trip through the legal system. My case basically boiled down to a "he said/she said" situation and the DA used the only tool at his disposal (the grand jury) to try and figure out what had really transpired. Once it became apparent that the people testifying against me had an axe to grind and the "evidence" they offered the police wasn't worth the paper it was printed on the gran

Actually, if you call from Canada then you and whomever you are calling can be legally recorded in any state, since that falls under federal jurisdiction. Thanks? to the homeland security brigade, it doesn't require a warrant or notification of any kind.

As for whether you can legally record said conversation, IANAL, but I would imagine it also falls under federal and not state law.

Does anybody know what jurisdiction a telephone conversation is deemed to take place in? If I call from Canada to Californi

I don't know what the consequences are for lying when a cop asks if you have anything sharp in your pockets during a search, but I'd be willing to bet it qualifies as a "legal order" to give a truthful answer.

Lying to a cop will net obstruction of justice charges. I see it in the newspaper all the time.

Illinois has one of these laws and there are cameras all over the place. However, you can get around the law on your own property by making it clear that you are being recorded (not sure if Illinois law covers video, but audio is illegal). The McDonald's on 6th and South Grand has a sign at the entrances warning that audio and video are being collected. So if you enter the building, you are consenting to being recorded.

I don't recall which state it was in, but there was a story on/. a while ago about someone being arrested because they had a sound and video recorder monitoring their front door and recorded a conversation with a policeman on their porch without first notifying him that he was being monitored.

I'd be more worried about a digital recorder being classified as a wire-tapping device. What does that mean for students who record lectures? For that matter, I have a digital camera on my desk that can record audio. Does this mean I can't bring it to Boston this weekend? What about cell phones, laptops, PDAs,watches [spytechs.com]? It used to be that recording devices were rare. Without turning my head I can see four computers, each with an audio in jack, eac

If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.

The solution to this, your eminence, is to make fewer things that everyone does illegal, not to ban writing.

You misunderstand. His Eminence does not see this as a problem in need of solving. Indeed, people who make others wear the noose without fearing it themselves find it an excellent way to solve their problems.

Richelieu needed those 6 lines written by the hand of a person, so he could forge evidence of some crime in the handwriting of some person.

To that end, it doesn't matter at all how many laws there actually are, and how many things are illegal. As long as there's at least one single thing that's illegal, say, murder (I think we can agree that there's no reason to make murder legal) Richelieu could still forge a letter in your writing when y

"...one Michigan Court has ruled that a participant in a private conversation may record it without violating the statute because the statutory term "eavesdrop" refers only to overhearing or recording the private conversations of others. See Sullivan v. Gray, 342 N.W. 2d 58, 60-61 (Mich. Ct. App. 1982). "http://www.citmedialaw.org/legal-guide/michigan-recording-law [citmedialaw.org]

Also, the legality of undisclosed taping for Delaware is specified here [rcfp.org]:

In Delaware, there is some conflict with regards to whether a party to a conversation can record the communication without the other party's consent. Delaware's wiretapping and surveillance law specifically allows an individual to "intercept" any wire, oral or electronic communication to which the individual is a party, or a communication in which at least one of the parties has given prior consent, so long as the communication is not intercepted with a criminal or tortious intent.

However, a Delaware privacy law makes it illegal to intercept "without the consent of all parties thereto a message by telephone, telegraph, letter or other means of communicating privately, including private conversation."

The wiretapping law is much more recent, and at least one federal court has held that, even under the privacy law, an individual can record his own conversations.

Cell phones can still only record one side, and it's a hassle (and hardly possible to turn on quietly).

Huh? I bought a $12 phone recorder at radio shack that plugs into the headset port on my cell phone. The other end plugs into a tape recorder or sound card. It records both sides of the call and isn't disrupt the call any more than plugging in a regular headset would.

The term interception means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein."

3. The term âoeintercepting deviceâ means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal and other than any telephone or telegraph instrument, equipment, facility, or a component thereof, (a) furnished to a subscriber or user by a communications common carrier in the ordinary course of its business under its tariff and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business.

Interesting. Looks like if he'd used the record app on his iPhone, subsection 3a would have applied, and he would not have been using an intercepting device...

No - under (3a), the iPhone would be exempt if used "in the ordinary course of [the business of a communications common carrier]" - i.e. as a phone. This exception was included so that people wouldn't get in trouble for using a public payphone while people had loud conversations nearby. Using the iPhone as a recording device would not be in the ordinary course of AT&T's business, so 3a wouldn't apply.

Now, as for being fine, here's the important part:

Police arrested a man they say caused a disturbance at a Honda dealership and who, it was later discovered, had been recording the exchange with a voice recorder in his pocket.

Why can't the legal system use common sense. Simply recording something is not the same as a wiretap. A wiretap implies access to conversations through some sort of technological loophole or exploit and is usually long term. If this is to be illegal then the law should refer to unlawful recording without consent.

IMHO, it doesn't make sense that it can be illegal to record a conversation that you are part of since you have been explicitly granted access to the information (the guy is F@#$ing talking to you).

The law never uses the term wiretap: Interception of wire and oral communications [mass.gov]. Lawmakers can hardly be held responsible for the logical consequences of what other people choose to call things after the fact.

Why can't the legal system use common sense. Simply recording something is not the same as a wiretap. A wiretap implies access to conversations through some sort of technological loophole or exploit and is usually long term. If this is to be illegal then the law should refer to unlawful recording without consent.

The law in question is Chapter 272: Section 99. "Interception of wire and oral communications".
So, yeah, the legal system doesn't always use common sense, but this isn't a great example for you.

Also, you propose "unlawful recording without consent" - that's not right either. Massachusetts doesn't require consent to be recorded, just knowledge. So I can say to you "I'm recording this conversation," and you can say, "no, I don't consent, turn off the recorder," and it's irrelevant. I can keep recording and I can use the recording in any way I see fit. Your consent is immaterial.

So I can say to you "I'm recording this conversation," and you can say, "no, I don't consent, turn off the recorder," and it's irrelevant. I can keep recording and I can use the recording in any way I see fit. Your consent is immaterial.

If I inform you that I am recording your speech, and you choose to keep talking, then you have consented.

Nah, you are not covered. To get the full protection of posting this legal notice, please also mention your full name, street address, social security number, your mother's maiden name, your password reset secret question, its secret answer, and... why bother? Why don't you just
give me all the money in your bank account and call it quits?

Why can't the legal system use common sense. Simply recording something is not the same as a wiretap. A wiretap implies access to conversations through some sort of technological loophole or exploit and is usually long term. If this is to be illegal then the law should refer to unlawful recording without consent.

IMHO, it doesn't make sense that it can be illegal to record a conversation that you are part of since you have been explicitly granted access to the information (the guy is F@#$ing talking to you).

And this would conceivably create the situation where a private citizen in a dispute with another citizen could compel him to do the old James Bond villain monologue where he outlines everything with a fucking cherry on top and then the judge throws it out as inadmissible.

How about if someone leaves a death threat on an answering machine? Could that be considered consensual because the caller knows he's talking to a machine? What if he says he thought it was the real guy because he leaves one of those cute

And this would conceivably create the situation where a private citizen in a dispute with another citizen could compel him to do the old James Bond villain monologue where he outlines everything with a fucking cherry on top and then the judge throws it out as inadmissible.

Actually when private citizens do that sort of stuff it's not thrown out as inadmissible unless they were doing it at the behest of the police. If I break into your house of my own accord and discover your pot grow operation/collection of body parts/captive sex slaves I can report what I've seen to the police and the evidence is admissible. If the police suggest that I should break into your house to discover this evidence then it won't be admissible.

As far as I know it's a common practise among police, perhaps worldwide, to try to find out who is a hothead and who isn't. When a cop is called to a dispute or fight, not always but often, s/he will ask each participant a few pointed, even brusque questions. Those who answer the questions calmly and act in a restrained manner are usually given the benefit of the doubt in terms of who started or heightened the altercation. Those who respond to a cops questions antagonistically, and/or don't calm down, are

Cops want one thing, most of all, when approaching a situation: To get home tonight, safely. If you go threatening them or their family, you're attacking this hope. If you give them reason to believe you're holding the capacity to catch them offguard or blindside them, you're attacking this hope. That's why when you get pulled over for speeding, you put your hands on top of your steering wheel where the cop can see them. When the boys in blue (not IBM) come kno

When a cop is called to a dispute or fight, not always but often, s/he will ask each participant a few pointed, even brusque questions. [...] If you're stupid enough to react to a cop aggressively rather than addressing any wrongs later through the courts or a police complaints board then you're likely gonna get charges laid against you that otherwise might be let go.

Yes, but this is the point - you will always be less credible than a cop before a court, if word stands against word. So if they prohibit your recording of all the insults the cop hurled at you (just because he can), you have no realistic chance of redress later through the courts (whether you became aggressive or not).

There was a case [ajr.org] before the Mass Supreme Judicial Court about 10 years ago where a motorist was stopped by the police. The motorist felt he was being singled-out unfairly so he secretly audio recorded the encounters. A few days later he went to the police station to file a formal complaint against the officers and submitted his recording as evidence. He wound up being arrested, charged and found responsible for violating the wiretap statute. The defendant appealed the decision up to the SJC and lost there.

I've always been torn up a little about the wiretap statute. I think it's not totally unreasonable to have some measure of protection in citizen-to-citizen interactions, especially in this age of Youtube. However I've always felt there should be an exception to this rule for recording municipal and state employees (including police) acting in their official capacity.

FWIW, there was an attempt to change the law to make an exception for recording police officers but (as one might expect) opposition from police unions killed it.